Garcia v. Richards

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

NORTHERN DIVISION

ERICK GARCIA, )

Plaintiff,

v. No. 2:18-cv-00041-RLW

TODD RICHARDS, et al.,

Defendants.

MEMORANDUM AND ORDER

This matter comes before the Court on review of plaintiff Erick Garcia’s second amended

complaint pursuant to 28 U.S.C. § 1915. (Docket No. 14). For the reasons discussed below, the

Court will dismiss plaintiff's second amended complaint without prejudice.

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To

state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief,

which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Jd. at 678.

Determining whether a complaint states a plausible claim for relief is a context-specific task that

requires the reviewing court to draw upon judicial experience and common sense. Jd. at 679. The

court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820

F.3d 958, 964 (8" Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73

(8 Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not

required to “accept as true any legal conclusion couched as a factual allegation’’).

When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit

of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”

means that if the essence of an allegation is discernible, the district court should construe the

plaintiffs complaint in a way that permits his or her claim to be considered within the proper legal

framework. Solomon v. Petray, 795 F.3d 777, 787 (8" Cir. 2015). However, even pro se complaints

are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.

Aubuchon, 623 F.2d 1282, 1286 (8" Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8"

Cir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just

because an additional factual allegation would have formed a stronger complaint’). In addition,

affording a pro se complaint the benefit of a liberal construction does not mean that procedural

rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed

without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

Background

Plaintiff is currently an inmate at the Northeast Correctional Center (NECC) in Bowling

Green, Missouri. He brings this action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original

complaint on June 8, 2018, naming Doctors Todd Richards, John Pope, Unknown Cook, and

Unknown Penyugua as defendants. (Docket No. 1 at 1). According to plaintiff, defendants

Richards and Pope were on the medical staff at “(Cameron Correctional.” Meanwhile, defendant

Cook was a physician at Capital Region Physicians, and defendant Penyugua was on the medical

staff at NECC.

In the original complaint, plaintiff alleged that during the course of his incarceration, he

was subjected to a “system of deliberate [indifference]” with regard to a chronic condition in his

right shoulder. (Docket No. 1 at 4; Docket No. 1-1 at 2). Plaintiff stated that he had been

misdiagnosed and allowed to endure pain while receiving treatment that medical staff knew was

not helping. (Docket No. 1 at 4).

On September 26, 2018, plaintiff filed a document with the Court construed as a motion to

amend. (Docket No. 6). In the motion, plaintiff stated that his claim was “improperly filed” and

that the inmate helping him fill out paperwork did so improperly. The motion was granted, and

plaintiff was given thirty days to file an amended complaint on a Court-provided form. Plaintiff

duly complied with this order and filed an amended complaint on November 13, 2018. (Docket

No. 9).

The amended complaint named the Missouri Department of Corrections as the sole

defendant. (Docket No. 9 at 1). Plaintiff alleged that in 2013, he discovered that he had a bone spur

and arthritis in his right shoulder. (Docket No. 9 at 5). This was revealed by an x-ray performed at

the South Central Correctional Center in Licking, Missouri. Plaintiff asserted that his pain became

worse following the x-ray. He also stated that he underwent a CT scan that showed he had a torn

labrum. He further claimed that he had been filing health service requests for five years, and that

his “doctors in D.O.C.” have requested that he see an orthopedist, but that such requests have been

denied. Plaintiff stated that his pain has continued to worsen, and that he is experiencing decreased

range of motion and muscle atrophy.

The Court ordered plaintiff to file a second amended complaint on March 25, 2019.

(Docket No. 10). In the order, the Court noted that plaintiff's amended complaint was subject to

dismissal for several reasons. First, to the extent that he was suing the Missouri Department of

Corrections for money damages, he had failed to state a claim, because a state was not a “person”

under 42 U.S.C. § 1983. To the extent that plaintiff sought injunctive relief, the Court stated that

plaintiff had failed to demonstrate that his constitutional rights were violated due to a Missouri

Department of Corrections’ policy, custom, or failure to train. Finally, the Court advised plaintiff

that his claims regarding medical treatment were vague and conclusory and did not establish that

the treatment he received constituted deliberate indifference.

Plaintiff was directed to file a second amended complaint within thirty days. The Court

provided plaintiff instructions as to how to do so properly. Plaintiff complied by filing a second

amended complaint on June 3, 2019. (Docket No. 14).

The Second Amended Complaint

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. His second amended complaint

names the following defendants: Missouri Department of Corrections (MODOC) Director Anne

L. Precythe; Warden Chantay Godert; Corizon; Dr. Lauren Cook; Director Todd A. Richards;

Unknown Persons; Unknown Medical Director; Nurse Dawn Wade; Director of Operations J.

Cofield; Regional Medical Director T. Bredeman; and Unknown Superintendent. (Docket No. 14

at 1-2). Defendants are sued in both their official and individual capacities. (Docket No. 14 at 3-

7).

In his “Statement of Claim,” plaintiff alleges that he has had to endure right shoulder pain

that has gotten progressively worse since 2013. (Docket No. 14 at 8). His symptoms include muscle

spasms, loss of strength, limited use of his right hand, limited range of motion, muscle atrophy,

numbness, swelling, and daily pain in his right shoulder, arm, and hand. Plaintiff asserts that his

condition requires surgery, but that this recommendation was denied by an unknown person or

persons. He also states that “a doctor” told him that nothing is wrong with his shoulder and

canceled an orthopedic appointment, despite an MRI, CT scan, and x-ray showing a labrum tear,

spurs, and arthritis.

Plaintiff is seeking $1,500 a day in damages since his injury was discovered in 2013, and

punitive damages in the amount of $750,000. (Docket No. 14 at 9). He also requests that surgery

be ordered to correct or repair his right shoulder.

Discussion

The Court has reviewed plaintiff's second amended complaint, as well as his original

complaint, his amended complaint, and the exhibits attached to both the original and amended

complaints.! Despite being given opportunities to amend, and being provided instructions to that

end, plaintiffs second amended complaint is deficient. Therefore, for the reasons discussed below,

the Court must dismiss the second amended complaint for failure to state a claim.

A. Official Capacity Claims Against Missouri Department of Corrections Employees

Plaintiff has sued MODOC defendants Precythe and Godert in their official capacities. In

an official capacity claim against an individual, the claim is actually “against the governmental

entity itself.” See White v. Jackson, 865 F.3d 1064, 1075 (8" Cir. 2017). Thus, a “suit against a

public employee in his or her official capacity is merely a suit against the public employer.”

Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8 Cir. 1999). See also Brewington v.

Keener, 902 F.3d 796, 800 (8" Cir. 2018) (explaining that official capacity suit against sheriff and

his deputy “must be treated as a suit against the County”); Kelly v. City of Omaha, Neb., 813 F.3d

1070, 1075 (8" Cir. 2016) (stating that a “plaintiff who sues public employees in their official,

rather than individual, capacities sues only the public employer”); and Elder-Keep v. Aksamit, 460

F.3d 979, 986 (8" Cir. 2006) (stating that a “suit against a public official in his official capacity is

1 The Court will treat these attachments as part of the pleadings. See Fed. R. Civ. P. 10(c) (“A copy of a written

instrument that is an exhibit to a pleading is part of the pleading for all purposes”).

actually a suit against the entity for which the official is an agent’). Thus, plaintiff's official

capacity claims against MODOC employees Precythe and Godert are actually claims against the

State of Missouri.

To the extent that plaintiff is seeking money damages from the State of Missouri, he has

failed to state a claim. “Section 1983 provides for an action against a ‘person’ for a violation, under

color of law, of another’s civil rights.” McLean v. Gordon, 548 F.3d 613, 618 (8" Cir. 2008). See

also Deretich y. Office of Admin. Hearings, 798 F.2d 1147, 1154 (8" Cir. 1986) (stating that “[§]

1983 provides a cause of action against persons only’). However, “neither a State nor its officials

acting in their official capacity are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police,

491 U.S. 58, 71 (1989). See also Calzone v. Hawley, 866 F.3d 866, 872 (8 Cir. 2017) (stating that

a “State is not a person under § 1983”); and Kruger vy. Nebraska, 820 F.3d 295, 301 (8" Cir. 2016)

(stating that “a state is not a person for purposes of a claim for money damages under § 1983”).

To the extent that plaintiff is seeking prospective injunctive relief against the State of

Missouri, he has still failed to assert a valid claim. In order to prevail on an official capacity claim,

plaintiff must establish the governmental entity’s liability for the alleged conduct at issue. See

Kelly, 813 F.3d at 1075. To do that, plaintiff mush show that the violation of his constitutional

rights resulted from (1) an official policy, (2) an unofficial custom, or (3) a deliberately indifferent

failure to train or supervise. See Mick v. Raines, 883 F.3d 1075, 1089 (8" Cir. 2018). See also

Marsh y. Phelps Cty., 902 F.3d 745, 751 (8" Cir. 2018) (recognizing “claims challenging an

unconstitutional policy or custom, or those based on a theory of inadequate training, which is an

extension of the same’). Plaintiff has not supplied any facts referring to a policy, custom, or failure

to train on the part of the State of Missouri.

For the reasons discussed above, plaintiff has failed to state an official capacity claim

against the MODOC defendants.

B. Claims Against Corizon and Corizon Employees

Plaintiff has sued Corizon, as well as Corizon employees Cook, Richards, Wade, Cofield,

and Bredeman in their official capacities. A corporation such as Corizon, acting under color of

state law, cannot be liable on a respondeat superior theory.” Smith v. Insley’s Inc., 499 F.3d 875,

880 (8" Cir. 2007). Rather, to support a claim against such a corporation, the plaintiff “must show

that there was a policy, custom, or official action that inflicted an actionable injury.” Johnson v.

Hamilton, 452 F.3d 967, 973 (8" Cir. 2006). See also Sanders v. Sears, Roebuck & Co., 984 F.2d

972, 975 (8" Cir. 1993) (stating that a corporation acting under color of state law will only be held

liable where “there is a policy, custom or action by those who represent official policy that inflicts

injury actionable under § 1983”).

Plaintiffs brief “Statement of Claim” contains no mention of a policy, custom, or official

action on the part of Corizon that inflicted an actionable injury. There are also no facts from which

a policy, custom, or official action might be inferred. Thus, plaintiff has not stated a claim against

Corizon. As the official capacity claims against Corizon employees Cook, Richards, Wade,

Cofield, and Bredeman are actually claims against Corizon, they likewise fail to state a claim.

C. Individual Capacity Claims

Plaintiff has sued defendants Precythe, Godert, Cook, Richards, Wade, Cofield, Bredeman,

and various unknown defendants in their individual capacities, alleging deliberate indifference to

his medical needs. Under the Eighth Amendment, the government has an obligation to provide

medical care to those whom it is punishing by incarceration. Estelle v. Gamble, 429 U.S. 97, 103

(1976). To demonstrate constitutionally inadequate medical care, the inmate must show that a

prison official’s conduct amounted to deliberate indifference. Dulany v. Carnahan, 132 F.3d 1234,

1237-38 (8" Cir. 1997).

In order to establish deliberate indifference, a plaintiff must prove that he suffered from an

objectively serious medical need, and that prison officials actually knew of and disregarded that

need. Roberts v. Kopel, 917 F.3d 1039, 1042 (8" Cir. 2019). See also Phillips v. Jasper Cty. Jail,

437 F.3d 791, 795 (8" Cir. 2006). “A serious medical need is one that has been diagnosed by a

physician as requiring treatment, or one that is so obvious that even a layperson would easily

recognize the necessity for a doctor’s attention.” Coleman v. Rahija, 114 F.3d 778, 784 (8" Cir.

1997). Deliberate indifference can include the intentional denial or delay of access to medical care,

or the intentional interference with treatment or prescribed medication. Vaughn v. Lacey, 49 F.3d

1344, 1346 (8" Cir. 1995).

To prevail under this standard, an inmate must demonstrate that a prison health care

provider’s actions were “so inappropriate as to evidence intentional maltreatment or a refusal to

provide essential care.” Jackson v. Buckman, 756 F.3d 1060, 1066 (8 Cir. 2014). As such,

“deliberate indifference requires a highly culpable state of mind approaching actual intent.” Kulkay

v. Roy, 847 F.3d 637, 643 (8" Cir. 2017). Thus, a showing of deliberate indifference requires more

than a mere disagreement with treatment decisions and is greater than gross negligence. Gibson v.

Weber, 433 F.3d 642, 646 (8" Cir. 2006).

Here, plaintiff has not adequately stated a deliberate indifference claim. While he asserts

that he has a medical need that requires treatment, he has not demonstrated that defendants

disregarded that need. Rather, plaintiffs facts show that he has received ongoing treatment for his

shoulder issue. This is borne out by a review of his attached medical records, which shows that

plaintiff has been seen by physicians for his shoulder condition, and that he has been provided

medical care, including various injections, medication, and physical therapy.

The main thrust of plaintiff's second amended complaint is his allegation that he requires

surgery, and that surgery has been recommended by a doctor in his medical records. Nevertheless,

plaintiff claims he has not been approved for surgery. Even accepting this as true, this does not

amount to an action “so inappropriate as to evidence intentional maltreatment or a refusal to

provide essential care.” Instead, it serves only to establish that plaintiff disagrees with the course

of medical treatment he has been provided. Deliberate indifference requires more than

disagreement over treatment decisions, which is all that plaintiff has presented.

Moreover, plaintiff has failed to assert the responsibility of any of the named defendants

for harming him. Liability in a § 1983 case is personal. Frederick v. Motsinger, 873 F.3d 641, 646

(8 Cir. 2017). In other words, “[g]overnment officials are personally liable only for their own

misconduct.” §.M. v. Krigbaum, 808 F.3d 335, 340 (8 Cir. 2015). As such, § 1983 liability

“requires a causal link to, and direct responsibility for, the deprivation of rights.” Madewell v.

Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). See also Kohl v. Casson, 5 F.3d 1141, 1149 (8" Cir.

1993) (dismissing plaintiff's excessive bail claims because none of the defendants set plaintiff's

bail, and therefore, “there can be no causal connection between any action on the part of the

defendants and any alleged deprivation” of plaintiff's rights). To that end, a plaintiff must allege

facts connecting the defendant to the challenged action. See Bitzan v. Bartruff, 916 F.3d 716, 717

(8" Cir. 2019).

Plaintiff makes no effort in his second amended complaint to allege facts that connect each

of the individual defendants to his claim of deliberate indifference to his medical needs. Indeed,

none of the defendants are named in the “Statement of Claim.” As such, there is absolutely no

indication as to what each defendant did or did not do to violate his constitutional rights. While

defendants Cook and Richards appear in the medical records, there is nothing in those records to

demonstrate a constitutional violation. To the contrary, the records show that defendants Cook and

Richards met with plaintiff and prescribed treatment for his shoulder.

When the Court ordered plaintiff to file a second amended complaint, it specifically

advised him of the importance of establishing the responsibility of each separate defendant for

harming him. The Court noted that plaintiff needed to provide the role of each named defendant

in his case, in order that each individual defendant had notice of what he or she was accused of

doing. See Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8 Cir. 2014) (stating

that the essential function of a complaint “is to give the opposing party fair notice of the nature

and basis or grounds for a claim”). Plaintiff has not complied with that directive.

For the reasons discussed above, plaintiff has failed to state an individual capacity claim

against defendants Precythe, Godert, Cook, Richards, Wade, Cofield, Bredeman, Unknown

Persons, Unknown Medical Director, and Unknown Superintendent.

D. Motion for a Continuance

Plaintiff filed a motion for a continuance to allow him an extra thirty to sixty days in which

to file his second amended complaint. (Docket No. 13). The Court will deny the motion as moot,

as plaintiff filed his second amended complaint on June 3, 2019, and the Court accepted the filing

as timely.

E. Motions to Appoint Counsel

Plaintiff has filed two motions to appoint counsel. (Docket No. 15; Docket No. 16). The

motions will be denied as moot as plaintiffs action is being dismissed for failure to state a claim.

See 28 U.S.C. § 1915(e)(2)(B).

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Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion for a continuance (Docket No. 13) is

DENIED AS MOOT.

IT IS FURTHER ORDERED that plaintiffs motions for appointment of counsel (Docket

No. 15; Docket No. 16) are DENIED AS MOOT.

IT IS FURTHER ORDERED that plaintiffs action is dismissed for failure to state a

claim. See 28 U.S.C. § 1915(e)(2)(B). A separate order of dismissal will be entered herewith.

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in

good faith.

Dated this Al day ler , 2019.

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R TE L. WHITE

UNITED STATES DISTRICT JUDGE

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